Devolution, Brexit, and the prospect of a new constitutional settlement for the four countries of the UK

Over the next 12 months the UK’s national and devolved institutions will be taking decisions that will rank amongst the most significant political events in Britain’s post-war history. In an attempt to contribute to the debate on the role of devolved bodies in the Brexit process, the Welsh Assembly’s Constitutional and Legislative Affairs Committee has produced a report on the subject. In this blog its Chair, Mick Antoniw AM, offers his personal view on the government’s current approach to Brexit and calls for a constitutional reordering of the UK once Britain leaves the EU.

Leaving the EU has turned out to be more than a mere decision to leave a Europe-wide economic and social bloc and has brought into sharp focus the future role and status of the UK in the world. What do we represent and how are we perceived? How much influence in world economic and political affairs do we really have? These questions, however, go even deeper in that they also call into question the very purpose, long-term future and stability of the UK as a country.

For almost 50 years, since the passing of the European Communities Act, the answers to these questions have been masked by our membership of a European project that with economic and technological globalisation has been developing into a political and social union based on its collective economic strength.

The Social Chapter, the central role of the European Court of Justice, the developing role of the European Investment Bank and the development of the EU as a trading bloc in its own right created a legal as well as an economic framework for an expanding Europe. Within this context the UK’s increasingly dysfunctional and conflicting internal constitutional arrangements have been masked and constrained by the broader EU constitutional framework and jurisdiction.

Pandora’s Box has now been opened. British nationalism’s nakedness has been revealed and our political and constitutional nudity is now there for all to see, exposed by the absence of any clear post-Brexit plan. Now that Article 50 has been triggered, the countdown to leaving the UK has begun and on 29 March 2019 we will be out of the EU, ready or not.

Aggravated by having a government that since the general election no longer has a clear parliamentary majority, and with an absence of any clear constitutional mandate for the type of Brexit that should be pursued, the British negotiating position has taken on the semblance for many in the UK and internationally as a comic farce.

The government’s handling of the Withdrawal Bill

A consequence of the triggering of Article 50 without any plan or proper preparation has contributed to the current chaos over the EU (Withdrawal) Bill (the Withdrawal Bill), which is slowly making its way through the House of Lords.

The key and uncontroversial part of the Withdrawal Bill is the repeal of the European Communities Act 1972. The bulk of the remainder of the legislation has turned out to be a constitutional pig’s ear.

The Withdrawal Bill is essentially a continuity bill that has the primary purpose of ensuring that existing EU law will be incorporated into UK law after Brexit. This in itself is not contentious. However, it also establishes Westminster control over laws which are within the constitutional jurisdiction of Wales (and the other devolved executives), enabling the UK government to amend, change, or alter law as it considers appropriate with relatively limited reference to parliament and without the requirement for the consent of the devolved administrations. It is this ‘power grab’ that has caused such a constitutional furore not just in the Welsh Assembly and Holyrood, but amongst respected Westminster parliamentarians such as the members of the Commons Public Administration and Constitutional Affairs Committee.

The refusal of the devolved administrations to give legislative consent would be a major constitutional obstacle. Westminster can override this refusal but, as acknowledged by the Supreme Court in the Miller judgment, there will be significant political consequences to undermining the Sewel convention, especially now it has been enshrined in law in the form of the Wales Act 2017. The recent statement by Cabinet Office minister David Lidington that differences in the rules among the four UK nations would lead to an ‘unnecessary disruption’ to domestic trade and undermine our future ability to make deals for the whole of the country will confirm the view that the UK government has in reality moved little from its original position in respect of devolved powers and the need for consent. It also would indicate that the government may even be preparing the ground to override the Sewel convention.

The Welsh Government has now confirmed that it is proceeding with the introduction of its own continuity bill. TheLaw Derived from the European Union (Wales) Bill will provide a statutory basis for the transfer of those powers and responsibilities currently residing in Brussels but which should legally revert to Wales the moment we leave the EU.

UK government handling of the Withdrawal Bill has been strategically and legally flawed from day one. It failed to properly engage the devolved governments in the drafting of the bill. It has significantly misunderstood, deliberately or otherwise, the constitutional status of those powers currently within the ambit of the EU but which would legally and constitutionally revert to devolved governments once we leave. Despite assertions to the contrary, ministers have failed to recognise that in order to achieve progress they would need to build a consensus with the devolved governments over the way forward. This is particularly so in areas of subsequent law reform and areas of common interest, such as maritime and agricultural policy, state aid and trade. Even if Westminster does make further concessions to appease devolved governments there are a number of other red lines the UK government will also have to overcome.

It is vital there is a long term commitment for direct allocation to the Welsh Government of former EU funding. It would be entirely unacceptable for the UK government to undermine devolved responsibilities by assuming this function. The future financial autonomy of devolved governments must be guaranteed. There will also need to be assurances that the Trade Bill and other Brexit-related legislation going through Westminster do not repeat the mistakes of the Withdrawal Bill and uphold the principles of devolved responsibility.

Changing the UK’s constitutional arrangements

Whatever the outcome of these constitutional battles there also needs to be a recognition and assurance that the UK will modernise its constitutional arrangements. After Brexit there is no idyllic pre-1972 nirvana to return to.

It is clear that the current Joint Ministerial Committee has not worked. It has become outdated and is not fit for purpose. It has operated in an arbitrary way at the behest of the UK Government and with a largely benign indifference to the interests of Wales. It is essential that it is replaced with a more formal and probably statutory body with a clearly defined function, supporting secretariat and credible disputes procedure. There is no indication yet that the UK government is capable of stepping up to the mark and resolving all these anomalies or that this aspect of post-Brexit reform is even on its radar.

In its recently published report, ‘UK governance post-Brexit’, the Welsh Assembly’s Constitutional and Legislative Affairs Committee has issued a renewed call for a commitment to begin this process of reform. The recommendations of the Committee include a call for the Llywydd (Presiding Officer) of the Assembly to establish with other Speakers and Presiding Officers of UK legislatures a ‘Speakers’ Conference, with the aim of:

‘determining how best to develop UK inter-parliamentary working, particularly as a means of scrutinising the impact of withdrawal from the European Union on the constitutional framework of the UK.’

Repeated calls by the First Minister of Wales, Carwyn Jones, for a Constitutional Convention have largely fallen on deaf ears. The way forward may be to bypass the Westminster government entirely and for the legislatures to take the initiative in starting this necessary process.

Such an approach is not without precedent. Almost 100 years ago, in the aftermath of the devastation of a global war, there was a debate in the House of Commons on the massive challenges of industrial reconstruction and declining empire faced by the country. Following two days of debate in June 1919 it was resolved that:

‘…with a view to enabling the Imperial Parliament to devote more attention to the general interests of the UK…. the time has come for the creation of subordinate legislatures in the United Kingdom.’

Those involved in the resulting Speaker’s Conference were bitterly and equally divided over the issue of regional versus national bodies and the extent of legislative and financial devolution and its various conclusions were never debated on the floor of the House of Commons. However, there was a clear recognition of the need for reform and a decentralisation of power. Half a century later, a Royal Commission on the Constitution (also known as the Kilbrandon Commission) was given the mandate of examining the functions of the central legislature and government in relation to the ‘several countries, nations and regions of the UK’. It experienced similar divisions but did lead eventually to the establishment of the devolved governments, albeit without leading to a resolution of the constitutional elephant in the room: the ‘English question’.

The recommendations in the Constitutional and Legislative Affairs Committee report also adopt much of the cross-party consensus that has consistently developed in constitutional committees across both houses of Parliament, Scotland and Wales:

In the short term the Joint Ministerial Council should fill the function of an annual Heads of Government Summit, adding new committees to the existing format to cover the single market and trade and to agree on common frameworks.

Inter-Governmental relations should be placed on a statutory footing by an amendment to the EU (Withdrawal) Bill.

In the longer term the JMC needs to be radically reformed so that it becomes a UK Council that is a decision making body, has an independent dispute resolution, arbitration and adjudication mechanism.

There will need to be a thorough review and overhaul of the Devolution Guidance Notes with the aim of establishing shared governance around the machinery that supports the delivery of effective and fair governmental relations with proper public consultation and parliamentary scrutiny.

The report recognises the considerable progress that has been made developing interparliamentary committee relations that have contributed to a significant development of mutual understanding and constitutional consensus around the post-Brexit challenges the UK faces.

These constitutional reforms would be the first steps to achieving what the post-war Speaker’s Conference and the Kilbrandon report failed to do: establish a pan-UK constitutional framework for the post-Brexit world we will find ourselves in. We could then, through a Speakers’ Conference, begin the process of enabling all the nations of the UK to come together to look at a longer-term constitutional structure of the UK which would not only provide a comprehensive and sustainable statutory framework for devolution but which also enables resolution of the English question. English Votes for English Laws has been a crude and ineffective sticking plaster approach to a deeper and more complex constitutional lacuna. The role of the UK parliament in this brave new world will also need to be redefined, as does its relationship with the devolved governments, regional government and local government.

There may be a certain irony that it is the Celtic parliaments that have consistently raised the need to resolve the English question, but this is nothing new. It was the hugely respected Welsh MP Cledwyn Hughes who in October 1973 asked the question during the debate on the Kilbrandon report: ‘Is the Prime Minister aware that we who belong to the Celtic fringe will do all we can to protect the English interest in this matter?’

The report of the Constitutional and Legislative Affairs Committee and its call for a Speakers’ conference has the potential to kickstart this process of much needed constitutional reform.

About the author

Mick Antoniw AM is Chair of the Welsh Assembly Constitutional and Legislative Affairs Committee. He is writing in a personal capacity and views expressed in this article are his and not those of the Committee.

The Constitution Unit in the Department of Political Science at University College London is the UK's leading research body on constitutional change.

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